Scalia’s death and the Supreme Court can of worms

WASHINGTON, February 13, 2016 — The sudden death of Supreme Court Justice Antonin Scalia has triggered earthquakes in the judiciary, in Washington, and on the presidential campaign trail.

The Court will hear several controversial cases this term, including cases touching on abortion, the Affordable Care Act’s contraceptive mandate, affirmative action, and the limits on executive action on immigration. With the loss of Scalia’s reliably conservative voice, the Court could split on some of these, and even if it does not, the absence of Scalia’s often trenchant, and more often scathing opinions will be keenly felt with dismay and pleasure.

Scalia’s death will open new battle lines in the United States Senate. Senate Majority Leader Mitch McConnell has already announced his intention that Scalia’s replacement not be confirmed until a new president occupies the White House. Minority Leader Harry Reid says that a year-long vacancy would be “unprecedented.” Ranking Democrat on the Senate Judiciary Committee, Sen. Patrick Leahy, says he expects President Obama to nominate a successor to Scalia.

Leahy issued a statement in which he observed, “The American people deserve to have a fully functioning Supreme Court. The Supreme Court of the United States is too important to our democracy for it to be understaffed for partisan reasons. It is only February. The President and the Senate should get to work without delay to nominate, consider and confirm the next justice to serve on the Supreme Court.”

President Obama will certainly nominate a successor to Scalia. There’s almost no chance the Senate will confirm that nominee before their summer recess, and they won’t want to pick up hearings while the election is going on.

After the election, the Senate will vote or not depending on who wins the White House and who wins the Senate. If Obama wants any chance of getting his nominee confirmed, he’ll choose a moderate; if Democrats win the White House and Senate in November, Republicans will have to decide whether they want to risk voting down a moderate for a more liberal choice in February.

If Republicans win in November, Obama’s nominee will be toast.

Scalia’s death throws an unexpected, potentially disruptive variable into the presidential campaign. It was generally expected that the next president would appoint at least one and probably more justices. Justice Ginsburg, 82, appears increasingly frail, and she is expected to leave the Court in the next four years. At 79, Scalia was the second oldest justice on the Court, and only five months older than Justice Kennedy. Stephen Breyer is 77.

Senators Ted Cruz and Marco Rubio have already announced their opposition to any nomination for a replacement from Obama. Hillary Clinton tweeted, “The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor our Constitution.”

The power and opportunity to nominate new Supreme Court justices will take a much more prominent role in the campaign, along side Obama’s eventual nominee to replace Scalia. The Court will also now be a much bigger issue in the electoral battle for control of the Senate. The Supreme Court was always going to be an issue, but now it is underlined, bolded and italicized.

The political ramifications were all predictable, the political gaming probably inevitable. Yet they point to something fundamentally wrong with the way we view the Court.

Before she was confirmed to the Court, Sonia Sotomayor spoke of the perspective she’d bring as a “wise Latina.” It’s now a given that there be a “black seat” on the Court, as well as “women’s seats” and, after Sotomayor, a Latino seat. Gay, Asian and other seats will probably be defined as different “firsts” are confirmed to the Court.

The Supreme Court was never meant to be a representative body, however; that’s the job of Congress. There should be no separate black, female, gay, white or male interpretations of the Constitution.

At the same time, there is something problematic with conservative and liberal interpretations, especially when “conservative” and “liberal” are defined along political lines rather than in the more classical meanings of the words. Scalia was a reliably conservative voice, as Ginsburg has been reliably liberal. The Court seems almost as politically divided as Congress, conservatives on one side, liberals on the other, and a swing vote in the middle.

Not everything passed by Congress passes on partisan lines; a great many issues before Congress are not controversial or are unimportant, and on those, the two sides often agree. The same is true of the Supreme Court; it has often decided cases by 7-2 votes or wider. Not every opinion generates a 5-4 decision with five or six different opinions.

But on the controversial issues—abortion, Obamacare, voting rights, affirmative action—the justices split on partisan lines. Partisans would say that their side follows sound, constitutional principles and precedent, while the other side legislates from the bench, serves partisan political ends, and ignores precedent. This position assumes that the basic constitutional principles are always bright and clear.

If they were as clear as that, we wouldn’t need Supreme Court justices to decide the law. A computer could do it for us. If they were, justices on the same side of the issue wouldn’t write their own concurring opinions. Unanimity would reign supreme.

And because they aren’t, the frequent partisan split on controversial issues is disturbing. When issues and principles aren’t entirely clear, do the justices always default to their partisan political beliefs?

The term “legislating from the bench” often refers to opinions that the person using it doesn’t like. That would make the term worthless. But it need not be. Consider instead two alternative approaches to deciding a case: working backward from a desired outcome to the necessary supporting logic; and letting the logic and constitutional principles lead to a conclusion.

It will never be as clear as that, though some Court opinions show all the signs of a predetermined answer in search of justification. It may be the case that the law is bad or silly, but silliness doesn’t render it unconstitutional, as Justice Thomas pointed out in his dissent to Lawrence vs. Texas (and Justice Potter Stewart before him in Griswold), and in its desire to strike down silly law, the Court does what the legislature should. It legislates from the bench.

Legislation is a partisan, representative affair, subject more to value judgments than to careful reasoning. It seems fair that if the Court is in the business of legislating, that its approach would be political rather than legal.

Scalia was a brilliant jurist, but he was as reliably conservative as Ginsburg is reliably liberal. Perhaps that means only that they are both reliably human. The idea of the legal logician who trades only in facts and logic is a childish fantasy. But it’s also an ideal that deserves at least passing respect. It gets no respect at all from outside the Court. The pity is that it doesn’t get much respect from inside, either.

James Picht is the Senior Editor for Communities Politics. He teaches economics and Russian at the Louisiana Scholars' College in Natchitoches, La. After earning his doctorate in economics, he spent several years doing economic development work in Moscow and the new independent states of the former Soviet Union for the U.S. government, the Asian Development Bank, and as a private contractor. He has also worked in Latin America, the former USSR and the Balkans as an educator, teaching courses in economics and law at universities in Ukraine and at finance ministries throughout the region. He has been writing at the Communities since 2009.